Joshua M. Luciano, Jr. v. Administrator, Unemployment Compensation Act et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT

The court has reviewed the record certified to it by the Board of Review, the defendant's motion for judgment, the plaintiff's pleadings, the plaintiff's objection to the motion for judgment, and has considered all of the submissions and the arguments of the Assistant Attorney General, and the plaintiff Joshua M. Luciano, Jr.

The court has no authority to find facts in an unemployment compensation appeal hearing.   It is limited to reviewing the record certified to it by the Board of Review.   Credibility of witnesses is evaluated at the administrative level and not in this court hearing.   In order for the court to review the facts, a motion to correct the findings must have been filed.   That was not done in this case, although it is clear that notice was given concerning that procedure in the decision itself sent to the plaintiff.

The court understands the claim of the plaintiff, but is by law required to treat this as a record review.   The Board of Review determined that the claimant was ineligible to receive benefits because he was discharged for wilful misconduct.

As the Board of Review found:

The referee found, and the record supports, that the claimant was the aggressor in the fight that led to his separation.   In so finding, the referee credited the testimony of the employer's witness over the claimant's version of the events that led to his discharge.   Unless there is evidence in the record which undermines a referee's credibility determination or the referee failed to consider critical evidence or assigned evidence inappropriate weight, a credibility determination made by a referee is entitled to deference.   See Kelly v. Administrator, Superior Court, judicial district of Litchfield, Docket No. 033669 (August 24, 1982);  Basile v. The Stanley Works.   Inc., Board Case No. 272–BR–88 (8/12/88).   There is nothing in the record which would compel us to overturn the referee's credibility determination in favor of the employer's testimony regarding his fight with the claimant.   In addition, the employer submitted physical evidence to support his testimony, which was the shirt he was wearing during the altercation.   The shirt has extensive damage to the pocket, underarm and length of one side of the shirt.

We find that the parties have not offered any argument in support of or in opposition to the appeal which would disturb the referee's findings of fact.   We further find that the findings are supported by the record, and that the conclusion reached by the referee is consistent with those findings and the provisions of the Connecticut Unemployment Compensation Act. Accordingly, we adopt the referee's findings of fact and decision.

The court does not retry the facts or hear evidence.   The court finds the decision of the Board of Review on the merits follows reasonably from the facts found, and the correct application of the law to those facts.   The decision is not arbitrary, capricious, or contrary to law.

The decision is affirmed, and the defendant's Motion for Judgment, Motion # 102.00 dated July 28, 2011 is granted.

The appeal is dismissed.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

Karazin, Edward R., J.T.R.